EADRSolutions™

Effective Access to Dispute Resolution and Conflict Managementin a Post-Healthcare Reform World

by Jeanne F. Franklin and Jane Reister Conard.

All Rights Reserved

This article is a sequel to our earlier presentations on dispute resolution and conflict management in healthcare. Our observations and suggestions build upon what we have already written, confirm the purposes of conflict management in healthcare, and explain what we see to be essential ideas in any successful effort to make early and appropriate use of dispute resolution an intrinsic part of healthcare culture.

We expect our audience to be a diverse one from among the many advisers and professionals who may and should have a part to play in creating healthcare conflict competence.1 Readers are likely already aware that: (1) healthcare facilities are required by The Joint Commission to have and use a conflict management program to try to alleviate unhelpful conflict that could impair the quality and safety of care2; (2) healthcare facilities must have policy and process for “zero tolerance” of behavior by anyone in the facility that undermines a culture of safety3; (3)effective March 31, 2011, healthcare facility medical staff bylaws and policies must include a kind of conflict management mechanism to handle conflicts among medical staff and between medical staff and governing bodies4; (4) the American Health Lawyers Association ADR Service published a Toolkit, available for free electronic access, on how to establish a CM program within a facility;5 and (5) the Toolkit was followed by the authors’ programs and articles providing further comment on elements of and approaches to managing conflict.6 Hospital and facility implementation of the foregoing requirements, and their more general conflict competence are not known to be widespread at present.7

Before healthcare reform was enacted in March 2010, it was understood by many connected with healthcare that the costs of unproductive conflict in healthcare settings are multiple and too great for an already challenged industry to sustain. How to treat that problem – the unmet need for solutions to costly conflict – had not exactly become Standard of Practice. Prescriptions and advice competed for hospital attention with so many other compelling issues. Now, healthcare reform - perhaps “healthcare change” is a more accurate term - has come along. The depth of change it portends and processes of transition may be monumental. For many providers, institutional as well as individual, these are expected to be difficult with consequences that are not yet altogether clear. Hence, strains of fear, uncertainty and competition abound. Untreated, they may contribute to an increase in costly conflict, with cost being broadly defined.8 It is our premise that effective access to and appropriate use of conflict management could actually become the unlegislated mortar or glue that will over time preserve valuable resources9 essential to delivering quality care, while facilitating change to improve continually the quality of care delivered in the face of challenges, old and new.

Healthcare attorneys are among those who will likely be consulted about how to build a conflict management process into the healthcare facility processes and policies to comply with Joint Commission Conflict Management requirements. One example is with regard to implementing EP 10 of the Joint Commission ‘s Medical Staff Standard concerning conflict management, MS.01.01.01. by March, 2011. Drafting a provision for revised medical staff bylaws is an obvious way in which lawyers are asked to assist. But regardless of bylaw language and minimal basic process steps set forth in a new bylaw provision, the real questions likely remain for people “on the ground”: “How do we actually implement this? What do we actually do?” Supplying good answers and suggestions with regard to that and a number of other issues in healthcare facilities such as disruptive behavior scenarios, may be assisted by considering the following thoughts.

Keep in mind the basic purpose of developing conflict competence in healthcare. It is far beyond a perfunctory compliance with regulatory mandates. Rather, its purposes are to: limit unnecessary and harmful effects of unresolved disputes; obtain benefit from exploring genuine differences of opinion;10 create good access to the right dispute resolution process exactly when you need it; and, help establish “a cooperative learning and performance culture in which all players in the healthcare setting know and understand their roles, support each other in them, and learn from each other.”11 For many if not most health facilities, this vision of healthcare conflict competence will represent a culture shift that will take time, leadership, patience and shared commitment to achieve.12 The challenge is how facilities become motivated to try to establish such a culture. Where and when do they begin? A truism may be pertinent and helpful to keep in mind – it is often when people need help and answers the most, are stretched too thin by a problem, that they are least in the position to fix it on their own.

Develop a working definition of conflict competence in healthcare to which one can refer. We 13 define it as a culture and practice of using timely, well directed resolution skills and interventions in a receptive environment to improve contentious or less than optimal situations, and prevent them from impairing the successful delivery of quality health services. This definition envisions a flexible use of dispute resolution processes, conflict management practices (e.g., communications, training, protocols, and conflict coaching) and ideas gleaned from the field of Organization Development (OD), an academic discipline and consulting practice that targets increasing growth and improving performance in organizations.

Employ a medical metaphor to explain in a more familiar and less threatening way the idea of building conflict competence in a healthcare facility: symptoms, testing, diagnosis, treatment plan, implementation, follow up and preventive practice. Healthcare providers are accustomed to thinking in such terms. The fundamentals of resolving particular conflicts and disputes, as well as of facilitating construction of a conflict program share similar stages: presentation of a problem or need, information gathering and assessment, development of options or recommendations, and a process for discussing which to try, implementation, and follow up (what worked, and what could be improved?).

Consider that conflict resolution work in healthcare can benefit from cross fertilization of ideas from the field of Organization Development (OD). The medical metaphor/conflict resolution paradigm set out above is similar to core concepts in OD. Traditional OD is based on “action research” that leads to interventions in an organization to improve its functioning and success. 14 Action research includes data gathering and diagnosis (evaluation of the data and other information). As stated by OD consultant and author, Peter Block,” the objective of diagnosis is to discover a statement of the problem that is enlightening and actionable….[that uncovers issues for which people in the organization can be responsible.]”15 Just as accurate testing and assessment are essential to a right medical diagnosis and treatment plan, accurate and perceptive assessments help organizations and people within them see problems more clearly so they can begin to figure out how to handle them.

Focus attention on the value of performing appropriate assessments in any given situation so that remedial energies are well directed. Assessment (gathering pertinent information) is a basic step in individual conflict resolution as well as in building conflict competence in an organization. Assessment in OD and other consulting fields is a broad concept that encompasses different kinds of information gathering and tools employed to ascertain the kinds of information needed for focused purposes. To use a medical metaphor once again, it is important to pick the tests (assessment tools) that are suspected to be relevant to the presenting symptoms or needs and possible diagnoses. Neutrals and lawyers are already experienced in analyzing the need for information and enlisting parties and clients in the gathering of it. OD consultants and workplace consultants are experienced in specific assessment methodologies to obtain relevant information to diagnose organization problems, including conflict. 16 But whatever assessment methods are used and who uses them, the key to getting the information that will be most helpful to any conflict resolution and to competence building will be matching the assessment tool, process or methodology to the presenting issues and to the consultant’s hunch about what may be necessary to evaluate the facility’s conflict problems and possible solutions to them.

An older assessment model from the field of OD consulting which still resonates is the so-called “6 Box Model” developed by Marvin Weisbord.17 Variations upon it might be helpful in addressing conflict competence in a health facility. The organization is assessed through the lens of 6 essential components that in successful organizations operate in harmony with each other: mission, leadership, roles, relationships, rewards and helpful mechanisms. The OD consultant assesses what is occurring in each component. When there are problems in one or more of the boxes, a kind of imbalance occurs, and the other components are affected in ways that can be unproductive, create conflicts and disconnects and thereby obstruct the success of the organization.

We don’t suggest that a full scale organization assessment is (always) a necessary or good idea for a healthcare facility. But the concept that conflict is often part of, or a symptom of, a larger problem is valuable to bear in mind. What is driving the conflict, what is conducive to its repair, and what creates likelihood of its recurring are things that should be examined. An adage from the OD field is that when there is a problem in an organization, that problem will continue to show itself in different, sometimes unexpected, forms until it is properly identified and addressed.

These statements by Weisbord may evoke a sympathetic response from a healthcare client: [Relationships in an organization are good when they carry forward the organization’s purpose and enhance the self-esteem of persons involved.] 18 If the self esteem and morale of many healthcare providers - nurses and physicians- are suffering, how does perpetuating that contribute to good relationships, keeping them in harmony with healthcare facility mission and roles? Another thought that could really catch a client’s attention is, “When interdependence is high in an organization and the quality of relations is poor, note the conflict management mode. Whatever it is, it’s inappropriate...”19

Thoughtful and respectful attention to the various cultures in the facility will be a valuable part of assessment. As we have written previously, cultures can be a driver in conflict, posing even greater challenge when at work on subtle levels (that is, when they are not quickly identifiable).20 For example, it may be helpful to hear that the practice of OD as of the mid 1970s was not seen to bring about the same success in healthcare institutions that it was doing in other organizations and corporations, and this was attributed to the role of culture. Weisbord commented on the then apparent lack of OD success (to his great frustration), opining that, beyond popular stereotypes of physicians, one cause was physician culture in which they identify with their profession and its science, as opposed to identifying with business management of an organization. He theorized that physicians measured their self worth against the body of scientific knowledge, outcomes and the standards of their profession – the regard of their peers. And one might assume that the goal of the OD efforts in the 1970s were around business goals of the institutions. Obviously much has happened since the era of Weisbord’s remarks in terms of hospitals buying practices and employing physicians, in short, seeking control as a way to align interests between physicians and health care facility. Yet, alignment of interests persists as a conflict issue that can divide medical staff from administration and governance, making few people involved happy about it when it occurs.

Conflicts between the medical and nursing professionals can also be recurrent and damaging. Some of this conflict is likely due to different cultures of the two professions, as well as by changing roles or assumptions about roles.21 Turf battles between some medical specialties may be replicated in conflict between physicians and nurses about identity, roles and responsibilities in patient care and medical decision making. Different professions will be required to commingle even more under health reform with very limited understanding of each other. Resolving conflicts with different cultural dimensions will require neutrals to gain trust and credibility, and have skill parsing cultural rifts that can cause chronic conflict. Newer mediation approaches and thought are under consideration generally with regard to such values and identity driven disputes.22 While a scholarly treatise on assessment is not intended here, the issue is flagged to explain to stakeholders why it is important to spend time and effort to make sure all the pertinent information is gathered to serve an effective conflict resolution process and program. The message for healthcare attorneys advising clients is to make sure that accurate assessments are performed and that truly wise and skillful facilitators, neutrals, or consultants are used. Co- mediation using neutrals from different backgrounds may sometimes be advisable to build the parties’ trust in the mediation.

Another reason why applying learning from the OD field is appropriate is because its purpose as a discipline and practice, the improvement of organizational performance, parallels the ultimate purposes for creating a culture of collaboration and conflict competence in healthcare – continuing improvement in overall healthcare facility performance, i.e. access, quality, and safety. Those are indeed stated reasons for the several Joint Commission standards relating to conflict management. We also believe such a culture will become the linchpin for successfully ushering in systemic changes.

Once past the assessment stage, conflict competence in the healthcare facility will include a menu of options for resolution process. It will be the role of the conflict manager or neutral in part to recommend and use the process that fits most appropriately. Once again using a medical metaphor, this decision by the conflict manager mimics medical triage. The menu from which processes or other interventions will be selected will likely include a variety of rights based, interest based, relationship building, training, communications and coaching opportunities, coupled perhaps with some additional tools from the OD toolkit such as reorganization or work on reward systems. In some situations such as an alleged disruptive behavior incident, the responsible in house person may conduct a preliminary assessment to judge whether the situation must be promptly placed on a rights based resolution track (grievance or disciplinary action) as opposed to other resolution process options. 23

Voluntary participation is a critically important factor in successful use of a dispute resolution process and program. This may be a tough nut to crack in healthcare. Given regulatory requirements now and in the future, there likely will be perceived (if not actual) elements of mandate in the when and how individuals find themselves in a dispute resolution process. Enthusiasm for using it and belief in its potential could be accordingly compromised. Our earlier commentary has emphasized that the use and success of a conflict program depends upon its credibility and the perception of its trustworthiness. Effective access to and use of conflict management will be enhanced by a sense of invitation and inclusion 24 rather than undertaken in a perfunctory, overtired or understandably reluctant way that other regulatory compliance is sometimes approached (“We’re dancing as fast as we can!”) This is no small point. Attorneys representing healthcare providers know the levels of resentment created by being told what to do by “outsiders” before being asked what might work better. Trained neutrals know that as a general matter ADR (mediation and facilitation) forced down the throat of any disputant, any party in distress, violates the principles of party self- determination and voluntary participation that enhance problem solving and that are credited, at least partially, with the success of alternative dispute resolution processes.

Such defining principles of the nature and practice of ADR are further validated by news that neurobiologists are documenting through medical testing the changes that occur in the brain in response to emotions such as defensiveness, fear, and anger. The responses impede rational, problem solving thought process; creation of fear and a defensive mindset causes bypass away from the problem solving portions of the brain to the brain’s seat of emotional responses. In states of high stress, the brain’s ability to admit and process information is reduced.25 Those who design, advise and practice within a facility conflict program should think about how to compensate for perceived elements of requirement and ensuing distrust or resistance. Responses from The Joint Commission when asked how to comply with the MS.01.01.01, or with the leadership Standard LD.02.04.01 can be especially helpful in light of this particular issue. For example, The Joint Commission urges healthcare attorneys not to parse EP 10 and the general question of conflict management implementation as though parsing language in a regulatory rule that has punitive or even criminal consequences if handled incorrectly.26 The Joint Commission hopes the Standard and EP will be understood as a vehicle that is conducive to improved communications and a positive sense of collaboration among the leadership in the healthcare facility around shared goals of delivering safe and high quality patient care. Flexibility, openness, trust, engagement, and working together are qualities that have been described as the essence of EP 10 observance.27

To the extent the facility approaches conflict management as a control mechanism for its own ends, rather than with a genuine commitment to fairness, the conflict program and process will be sorely disabled from the start. Similarly, acknowledging that healthcare facilities are often severely strained financially with fewer options than they would like will be appropriate and helpful to support the facility as it begins to engage in building conflict competence or a specific dispute resolution process. It will behoove neutrals to help stakeholders see commonalities, particularly as they navigate changes in healthcare delivery and reimbursement mechanisms, to generate some rapport and respect as the conflict management enterprise begins.

Marketing or outreach within the facility about the existence and potential of a conflict management resource will be a critical and ongoing component of the program. This marketing must extend beyond initial publicizing and training. Growing and perfecting a conflict management core competency will not happen in a day and it requires use to improve it. Experience reported anecdotally from HR consultants shows that just because an organization builds conflict competence does not mean that it is used or that it is used in timely fashion. Such periodic marketing will entail the kinds of skilled activity necessary in the first place to pique the interest of facility leadership to establish a conflict program. But this continued marketing and outreach will also be served by outcome reporting of a kind that demonstrates value. Metrics for measuring value could include, to suggest only a few: decreased litigation and defense costs across a range of legal issues such as consumer complaints and medical staff disputes, fewer grievances filed, lower staff turnover (or put more positively, a more stable workforce), indices of provider and leader morale, and measured quality outcomes.

In conclusion, barriers to making the commitment to a conflict management program as well as its actual use will include inertia, time, budget, attention, and as already discussed, a more general sense of resistance. Even though the challenges of implementing healthcare reform under PPACA are significant such that they might steal attention away from focus on conflict management, the opposite can also be true. If conflict competence can be shown to be a framework for reorganizing, aligning, and supporting providers’ self esteem, pride in their work, and faith that they will be supported in doing it, that could be the tipping point that will move a healthcare conflict competent culture forward, particularly with leadership’s determination to help it do so.

1 People from different professional backgrounds – neutrals, lawyers, administrators, healthcare providers, OD consultants, and HR consultants - may be called upon to bring different skills and pieces to a healthcare facility’s conflict management effort. (It would be ideal that they are called upon in a coordinated manner.) This article is prepared with such a variety of professions in mind, hoping that there will be something of value across the board for its varied readers with some universal ideas shared among them.

2 The Joint Commission (hereafter, “TJC,”) LD. 01.03.01

3 TJC Standard, LD.03.01.01

4 TJC Standard MS. 01.01.01

5 American Health Lawyers Association Conflict Management Toolkit, December 2008, available at www.healthlawyers.org/adr for free download.

7 There is anecdotal information and information published by individual health care facilities or systems about their use of a range of dispute resolution practices, including ombuds programs; risk management programs for disclosure and compensation discussions following adverse medical outcomes; conflict management through HR departments, or through an in-house OD department; and use of outside consultants to work with teams for team building and conflict reduction purposes.

8 As listed and discussed in our program material, “’Can We All Just Get Along?’ Implementing Systemic Conflict Management,” fn 6 supra, these costs of conflict certainly encompass money but also can include impaired daily operations, failed deals, lost good will and relationships, medical errors (their human costs and liability costs), impaired initiatives like compliance programs and quality improvement, and failure of alignment around common interests.

9 Hospitals, and a highly skilled workforce of physician and nurse providers and with them medical knowledge

12 Federal agency experience with building conflict competence shows that it can take a long time to build good programs and a culture of conflict competence. An example is the United States Air Force whose ADR Program was recognized in 2005 as a Negotiation Center of Excellence; said program was 20 years in the making. (Perhaps an irony is that a culture shift will be conducive to effective access to alternative dispute resolution and conflict management processes. But it is also precisely the example of successful uses of ADR/CM processes in the facility that can further a culture shift that serves organization purposes and relationships.)

13 EADRSolutions™ encompasses the authors’ definition of conflict competence in healthcare and the kinds of services provided under its mantle.

16 Some assessment instruments are branded and protected by intellectual property law, and persons using them must be trained or licensed (authorized) in their use. Examples include the Conflict Dynamic Profile, and the Strength Deployment Inventory.

17 Weisbord, fn 13 at pages 8 and 9.

18 Ibid at page 30.

19 Ibid at page 32.

20 Culture is considered here to have broad meaning, encompassing age (generation), gender, ethnicity, religion or belief system, and professional affiliation, to name a few sources of culture. See materials from AHLA Advanced Mediation Training, at fn 6 supra

23 “Sensible Intervention…”, fn 6 Supra; Conflict competence in healthcare will require that those implementing the program be knowledgeable, skilled and nimble in using the right process at the right time.

24 Jeremy Lack, faculty discussant at the International School of Business Mediation, Admont, Austria, July 2010.

25 Research and writings of Dr. Jospeh LeDoux ; Douglas E. Noll and Lee Jay Berman, American Institute of Mediation, “Harnessing the Power of The Master Mediator;” also see chapter 6 in Malcolm Gladwell’s, Blink, Little, Brown & Company, 2005.

26 That may be easier said than done given the difficult task healthcare attorneys face to keep clients safe and in compliance in the context of innumerable and sometimes inscrutable rules and regulations. A nervous and compulsively cautious mindset on the part of attorneys is understandable and often appropriate.